Citation Nr: 1030561
Decision Date: 08/16/10 Archive Date: 08/24/10
DOCKET NO. 06-39 517 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
recurrent sprain of the right thumb with ulnar collateral
ligament impairment.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W.H. Donnelly, Counsel
INTRODUCTION
The Veteran served on active duty with the United States Army
from November 1984 to September 1985.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 2006 rating decision by the Waco, Texas,
Regional Office (RO) of the United States Department of Veterans
Affairs (VA), which denied entitlement to an increased evaluation
for a right thumb disability.
The Veteran requested, and was scheduled for, a hearing before a
Veterans Law Judge at the RO in June 2010; notice of such was
mailed to him at his address of record. The Veteran failed to
report for the hearing without explanation or request to
reschedule. The hearing request is therefore considered
withdrawn. 38 C.F.R. § 20.704.
FINDING OF FACT
The Veteran's lack of candid cooperation with repeated VA
examinations is the equivalent of a failure to report for
examination.
CONCLUSION OF LAW
The criteria for an increased evaluation for recurrent sprain of
the right thumb with ulnar collateral ligament impairment have
not been met. 38 C.F.R. § 3.655(b).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
These duties are not applicable here, however, as the claim must
be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
II. Analysis
When an examination is deemed necessary for proper adjudication
of a claim for increased rating, and the Veteran fails to report
for such examination without a showing of good cause, the claim
for increased evaluation must be denied as a matter of law.
38 C.F.R. § 3.655(a) and (b).
Upon obtaining VA treatment records, the RO determined that
examination was required to ensure an adequate record for rating
purposes. The records, from October 2001 to April 2010, do not
contain findings permitting due consideration and application of
the appropriate rating criteria. The Veteran was scheduled for
examinations in July 2006 and October 2007 in connection with the
claim for increase, and in July 2009 an examination of the hand
was conducted in connection with a claim for a total disability
evaluation based on individual unemployability.
The Veteran appeared for each of these examinations. In each
instance, however, the examiner reported that the Veteran failed
to cooperate with the examination, which prevented VA from
obtaining a candid and honest disability picture. He exaggerated
pain responses and reports, refused to perform some requested
motions (even of uninjured body parts), and voluntarily and
artificially limited his range of motion when he did undertake
movement.
This failure to cooperate is the functional equivalent of failure
to report for examination. VA depends on the candor and honesty
of the Veteran in presenting disability symptoms to assist in the
accurate and just assignment of disability evaluations. A
Veteran has an obligation to cooperate with VA in the development
of his claim; the duty to assist is not a one-way street.
38 C.F.R. § 3.159; Woods v. Derwinski, 1 Vet. App. 190 (1991);
Harmon v Shinseki, No. 08-2997, 2010 WL 1734880 (Vet.
App.)(unpublished table decision) . While examiners are careful
to stress that they did not believe the Veteran was intentionally
malingering, and the Board does not believe he was attempting to
willfully mislead the examiners or adjudicators, the fact remains
that his actions have resulted in a lack of necessary evidence.
Remand for further attempts to obtain complete and credible
examination findings does not appear to be a viable option.
Three attempts in three years are sufficient, and the examiners
all comment that the Veteran's nonservice connected and severe
mental health problems cause or substantially contribute to his
aberrant responses. Remand would be a waste of resources, as it
appears impossible to obtain the necessary examination findings.
Accordingly, in light of the finding of a failure to report for
repeated VA examinations due to lack of cooperation, entitlement
to an increased evaluation for recurrent sprain of the right
thumb with ulnar collateral ligament impairment is not warranted
as a matter of law.
ORDER
An increased evaluation for recurrent sprain of the right thumb
with ulnar collateral ligament impairment is denied.
____________________________________________
RONALD W.SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs